On 12 September an American member who was allegedly fighting with Daesh in Syria surrendered to the Syrian Democratic Forces and was handed over to the United States’ military custody in Iraq. The Department of Defence (DoD) is treating the fighter as an “enemy combatant”.

Whether the US decides to imprison him in Guantanamo Bay or fly him to US mainland to be tried in a civilian court is a major litmus test over the legality of the war against the Daesh group (or the Islamic State) in Syria, Iraq and beyond.

The US DoD did not name the specific group part of the transfer to US custody, but claimed the group was part of the Syrian Democratic Forces, Maj. Ben Sakrisson, DoD spokesman told MEMO. The US notified the International Committee of the Red Cross (ICRC) of the fighter’s detention on the 25 September, which transpired to a visit on the 29 September, DoD confirmed.

The ICRC confirmed to MEMO that it had visited the US citizen, but was not “in a position to comment on the individual’s identity, location or conditions of detention,” according to Anna Nelson, Head of Communications for the ICRC. ICRC’s visits are to ensure the safety and wellbeing of prisoners in accordance to the Geneva Conventions. The ICRC have not released or publically commented on the status of the US citizen.

Detention and Trial Quandary

Trying American nationals in Military Commissions – like the military tribunals used to try Guantanamo detainees – is technically unlawful, as per US federal law which requires US Congress to introduce new jurisprudence to permit it. But back in August 2015, whilst running for Presidency, President Donald Trump was open to the idea of sending American nationals to Guantanamo Bay:

“I would say they could be tried there [Guantanamo Bay], that would be fine”, Trump said. Loading Guantanamo with “bad dudes” may not be an easy response, though. The current Military Commissions Act only permits “foreign aliens” to be tried according to the 2006 law.

Questions regarding the American-Daesh fighter in Syria currently held in Iraq should not dwell over the status of whether or not he’s American. It is the fact that he was fighting with the Daesh group that poses severe legal challenges which have not been accounted for by US Congress.

In response to what the legal status of the American fighter is, Sakrisson claimed it was being deciphered:

“The disposition of the detainee is being deliberated with the appropriate departments and agencies,” Sakrisson said. “In the interim, the individual remains in DoD custody.”

Nearly four weeks have passed and the American national has no legal status and neither has he had access to legal representation. Such a circumstance goes against the grain of the US Constitution. The US cannot simply imprison a combatant or non-combatant without charge or access to lawyers.

Fighting alongside a group like Daesh is indeed a serious allegation, particularly in the context of the hostilities the group has been associated with in the Syria and Iraq conflict. In addition, Iraq has a track record of torture, and without having any information on the location of imprisonment, it is difficult to assess whether international standards have been complied with.

The human rights group American Civil Liberties Union (ACLU) has filed a habeas corpus petition to the US courts as “next of friend” to allow the American national to acquire due process. The petition seeks to bring the detained person before a court of law for release unless there are lawful grounds for detention.

Submitting evidence extracted under military detention would not be admissible in a civilian court, particularly if the civilian was tortured. Confessions and intelligence gathering under duress, which is standard practice in military detention, will never produce accurate information, which may render potential evidence inadmissible.

Keeping a suspected combatant under indefinite detention without trial poses severe legal challenges that the US has faced with Guantanamo Bay inmates since 2002 – an issue left behind by former President George W. Bush and a failed closure promise by former President Barack Obama.

Game changer: War on Terror 2.0?

The US is justifying military operations against Daesh in Syria and Iraq – including treatment of prisoners of war like the detained American Daesh fighter – under the Authorisation for the Use of Military Force (AUMF) 2001. It was passed in the aftermath of the 11 Sept 2001 attacks to chase “Al-Qaeda, Taliban and associated forces”.

Alongside AUMF 2001, the AUMF 2002 created for the Iraq war has been used 37 times to justify military force around the globe. But these two authorisations do not cover Daesh, as the group did not exist or contribute to 9/11, rendering the fight against Daesh questionable on legality.

The case of the American fighter will potentially challenge the legal and political framework of the US operations in Iraq. Similar challenges have occurred before, leaving the question looming.

In another stark incident, a US Army Captain Nathan Smith deployed in Kuwait to fight Daesh under Operation Inherent Resolve left his post. Smith sued President Barack Obama in 2016 on the basis that his actions were not authorised by US Congress, hence the War Powers Resolution requires the President to remove all US troops from Operation Inherent Resolve in Iraq and Syria.

The case was quickly shrugged off by motions put forward by the Department of Justice under the “political question doctrine,” which renders the court unable to answer. Nevertheless, Smith had a plausible case with strong merits, which has not gone unnoticed among politicians in the US.

In an unprecedented development in July Rep. Barbara Lee (D-CA), a Democrat, put forward an amendment to the Defence Appropriations Bill to effectively repeal the AUMF 2001 in 240 days – it was objected to by one vote. This clearly showed a growing sentiment within Congress for a renewal of an outdated AUMF to combat newer threats.

This has led to a huge bipartisan consensus that the current AUMF 2001 has become stale, making it unreasonable to legally claim that US troop deployment, drone strikes or special ops raid in countries against groups or entities that has had nothing to do with 9/11 is legal.

US domestic authorisation has not planned for the detention of Daesh or any other group members not part of 9/11. If President Trump decides to drag this inmate to Guantanamo Bay, it will be a major litmus test for the War on Terror and primarily the legality over military action against the Daesh group in Syria, Iraq and beyond – which may see the beginning of a War on Terror 2.0.

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